Cincinnati Bell Telephone Co., L.L.C. v. J.K. Meurer Corp.
185 N.E.3d 632
Ohio Ct. App.2022Background
- J.K. Meurer, a pavement contractor, used powered equipment (a grinder/Bobcat) to remove and repave a private driveway adjoining 2920–2924 Burnett Avenue.
- During the work the contractor struck and damaged Cincinnati Bell underground communication cables and then repaved over the area without contacting Ohio Utility Protection Service (OUPS).
- Cincinnati Bell located, replaced the damaged cables, tracked the costs under PUCO rules, and billed $10,393.73 for repair and related charges.
- Cincinnati Bell sued for negligence; the municipal court found J.K. Meurer violated R.C. 3781.28(A) by failing to notify OUPS, held that violation was negligence per se, and awarded $10,393.73.
- J.K. Meurer appealed, arguing (1) the grinding was not an "excavation," (2) Cincinnati Bell failed to prove causation and reasonable damages, and (3) the trial court should have granted a directed verdict. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of a grinder to remove asphalt is an "excavation" under R.C. 3781.25(I) | Grinding removed and demolished an existing driveway (a "structure"), so it is excavation | Grinding blacktop is not "excavation" but mere surface removal | Use of powered equipment that demolished the driveway qualifies as excavation |
| Whether failing to notify OUPS is negligence per se under R.C. 3781.28(A) | Statute sets an objective duty to notify OUPS; violation is negligence per se | Liability should be excused if utility was buried shallower than required | Violation of R.C. 3781.28(A) is negligence per se; no statutory excuse for shallow placement asserted by defendant |
| Causation — did contractor’s conduct actually and proximately cause the damage? | Contractor struck cables while grinding; mapping and testimony show location and sequence | Causation requires expert proof because of regulated utility practices and machinery | Cause-and-effect was sufficiently clear from testimony and diagrams; no expert required; actual and proximate causation proven |
| Directed verdict — whether trial court should have granted one | (implicit) Evidence established all negligence elements | Trial court erred by denying directed verdict because plaintiff failed proof | Denial proper; reasonable minds could find for plaintiff on breach, causation, and damages |
Key Cases Cited
- Eastley v. Volkman, 972 N.E.2d 517 (standard for reviewing manifest-weight of the evidence after a bench trial)
- Sikora v. Wenzel, 727 N.E.2d 1277 (statutory violation can constitute negligence per se when statute sets a positive, definite standard of care)
- Mussivand v. David, 544 N.E.2d 265 (elements of negligence: duty, breach, causation, damages)
- Chambers v. St. Mary's School, 697 N.E.2d 198 (statutory or common-law sources can create a legal duty)
- Boyd v. Moore, 919 N.E.2d 283 (Ohio appellate decision holding R.C. 3781.28(A) violation is negligence per se)